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TMI Blog2024 (4) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of CHALR, 2004 and now Regulation 7(2) of Customs Brokers Licensing Regulations (CBLR), 2018. 2.2 On the basis of specific information received by Nhava Sheva Preventive Unit, Rummaging and Intelligence wing of Customs Preventive Commissionerate (NSPU) that one importer M/s Liberty Motors, Mumbai had imported automobile spare parts of foreign origin from Shanghai and they had mis-declared the same in terms of weight and value to evade customs duty, necessary enquiry was conducted. Preliminary inquiry revealed that the imported goods containing auto spare parts have arrived at GDL, JNPT CFS vide container No. SUDU-5933179 and the relevant B/E No. 983392 dated 13.07.2009 have been filed by the appellants CB declaring the assessable value of Rs.3,78,430/- and the custom duty of Rs.96,579/- was already paid by the importer M/s Liberty Motors. The said goods initially detained on 14.07.2009 and were taken up for detailed examination under panchnama proceedings by NSPU on 23.07.2009 in the presence of appellants CB's representative. The actual weighment of the goods indicated that the imported goods were having gross weight of 24010 kgs., which are in excess as compared to the decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the appellants and only for partial forfeiture of the amount of security deposit of Rs.15,000/- on the appellants. Feeling aggrieved with the impugned order, the appellants have preferred this appeal before the Tribunal. 3.1. Learned Advocate for the appellants contends that both the allegations of violation of Regulations 13(d), 13(e) and 13(n) of CHALR, 2004/ Regulations 10(d), 10(e) and 10(m) of CBLR, 2018 have been countered by them. In respect of Regulation 10(d), he stated that all the declarations in the B/E were made on the basis of documents given by the importers, and the appellants were neither aware of the mis-declaration of imported goods in terms of its description, value, etc. nor has the expertise or the authority to determine the correct classification or assess the value; they claimed that the appellants were no manner connected with the violations of the Customs law as the alleged non-compliance is connected with procurement of imported goods for which the appellants are not involved. He stated that any action taken by importer in respect of imported goods leading to any violation, subsequent to customs clearance of the goods such as change of MRP etc., sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CHALR, 2004/Regulation 10 of CBLR, 2018. Obligations of Customs Broker: - A Customs Broker shall - ... (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage; ... (n)/(m) ensure that he discharges his duties as Customs House Agent/ Customs Broker with utmost speed and efficiency and without avoidable/any delay;" 6.3. We find that the Commissioner of Customs had come to the conclusion that the statements recorded during the investigation from Shri Lalit Agarwal, partner of appellants CB and S/Shri Sampat Phatangare, Arjun Nishit, employees of the appellants CB, in terms of the legal provisions of Section 108 of the Customs Act, 1962 which have been used as evidence against the appellants to the extent of omissions and commissions on their part for contravention of Regulations 10(d), 10(e) and 10(m) CBLR, 2018, have been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be found fault for the reason that they did not advise their client importer to comply with the provisions of the Act. Further, as the purported mis-declaration of imported goods was not known to the appellants, the non-compliance by the importer in respect of imported goods could not have been brought to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) by the appellants CB. Thus, we are of the considered view that the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable. 8.1 Learned Commissioner of Customs (General) had come to the conclusion that the CB had violated the provision of Regulation 10(e) ibid, on the ground that the appellants did not display meticulousness and thoroughness which was necessary when handling consignments so as to protect the interest of revenue. Further, he found that the appellants CB has displayed a casual and lackadaisical approach towards their work by carrying out the clearance work without exercising due diligence to ascertain the correctness of information. 8.2 The documents submitted by the importer to the appellants CB included invoice, packing list, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared in the B/E. Further, there is no case of importer or any other person having complained about the inefficiency or delay in clearance of the imported goods by the appellants CB. Therefore, the conclusion arrived at by the learned Commissioner of Customs that the appellants have failed to discharge their obligations cast on him under Regulation 10(m) ibid is factually non supported by any evidence and thus it is not legally sustainable. 10.1 We find that in respect of the obligations on the part of CB with respect of verification of genuineness of the documents the Hon'ble High Court of Delhi has held in the case of Kunal Travels (Cargo) Vs. Principal Commissioner of Customs (I&G), IGI Airport, New Delhi reported in 2017 (354) E.L.T. 447 (Del.), the appellants CB is not an Inspector of Customs who would have an expertise to weigh the genuineness of the transaction. The relevant portion of the said judgement is extracted below : "The CHA is not an inspector to weigh the genuineness of the transaction. It is a processing agent of documents with respect to clearance of goods through customs house and in that process only such authorized personnel of the CHA can enter the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of the judgement of the Hon'ble Supreme Court in the case of K.M. Ganatra (supra), we find that the appellants could have been proactive in fulfilling their obligation as Customs Broker for exercising due diligence, particularly when the import documents indicated the correct tariff classification. Thus, to this extent we find that the appellants CB are found to have not complied with the requirement of Regulation 10(e) ibid and thus partial forfeiture of security deposit for an amount of Rs.5000/- for not being proactive for fulfilling of obligation under Regulation 10(e) ibid alone, is appropriate and justifiable. 12. In view of the foregoing discussions, we do not find any merits in the impugned order passed by the learned Commissioner of Customs (General), Mumbai in forfeiture of security deposit of Rs.15,000/- for violations under Regulations 13(d), 13(e) and 13(n) of CHALR, 2004 corresponding to 10(d), 10(e) and 10(m) of CBLR, 2018. However, in view of the failure of the part of appellants in not having acted in a proactive manner in fulfillment of the obligation under Regulation 10(e) ibid, corresponding to 13(e) of CHALR, 2004 particularly when they had received th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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